CHARLES J. KAHN, Jr., Magistrate Judge.
Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 13). Petitioner replied. (Doc. 17). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the Court show that petitioner is not entitled to federal habeas relief, and that the petition should be denied.
On November 7, 2006, petitioner was charged by Information filed in the Circuit Court for Jackson County, Florida, Case No. 06-541, with Lewd and Lascivious Molestation (of a person 12 years of age or older but less than 16 years of age). (Doc. 13, Ex. B).
On April 25, 2008, Probation Officer Dennis Keeman filed an Affidavit of Violation of Probation asserting that petitioner violated Condition 5 of his probation. (Ex. E). Condition 5 of the probation order provided: "You will live without violating the law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation." (Ex. D). Officer Keeman's affidavit asserted that petitioner violated Condition 5 on April 22, 2008, by committing the criminal offense of Sexual Battery. (Ex. E). As grounds for belief that petitioner violated his probation, Officer Keeman stated: "[T]he offender was arrested on 04-25-08, for the said offense by Captain Bill Bryant, Marianna Police Department, as told to Officer Dennis V. Keeman on 04-25-08, by receipt and review of copied Affidavit-Complaint Report #M08042432." (Ex. E). A copy of the Affidavit-Complaint was attached to Keeman's affidavit. (Id.). The Affidavit-Complaint, filed in Jackson County Circuit Court Case No. 08-305, charged petitioner with committing sexual battery on an 11 year old female (R. S. L.) on April 22, 2008. (Id.). The Affidavit-Complaint was accompanied by a Probable Cause Narrative stating:
(Ex. E). R. S. L. was C. L.'s sister. C. L. was married to petitioner at the time. (See Ex. I). A Violation Report was filed on April 25, 2008, and a warrant for petitioner's arrest issued. (Exs. F, G).
On April 2, 2009, Probation Officer Jennie Dean filed an Amended Affidavit of Violation of Probation asserting the original violation and an additional violation of Condition 5 based on petitioner's "committing the criminal offense of Sexual Battery [on the victim of the original violation] on two prior occasions — dates are unknown, in Jackson County, Florida. . . ." (Ex. H). As grounds for belief that petitioner committed the additional violation, Officer Dean referenced and attached the same Affidavit-Complaint Report #M08042432. (Id.).
A probation violation hearing was held on April 6, 2009. (Ex. I). Petitioner was represented by counsel. (Id.). The victim, R. S. L., testified that on one occasion petitioner touched the top of her genital area causing injury (a scratch); that on another occasion petitioner attempted to penetrate her anally with his penis causing injury (tearing); that on another occasion (the day before the victim's birthday which was April 23rd) petitioner, while sitting in a chair with his penis exposed, grabbed R. S. L. as she walked by, pulled her pants down to her knees and tried to pull her down onto him in an attempt to make contact between his penis and her vagina, but was only able to make contact with R. S. L.'s inner thigh before she was able to free herself; and that on another occasion petitioner masturbated and ejaculated in R. S. L.'s presence (Ex. I, pp. 21-41). The State called other witnesses. Petitioner was allowed to cross-examine all of the State's witnesses, present his own witnesses, and testify on his behalf. (Id.). The court continued the case until the next day. The VOP hearing resumed on April 7, 2009. (Ex. J). At the opening of the hearing the State announced its desire to amend the Amended Affidavit of Violation of Probation to conform to the evidence:
(Ex. J, pp. 2-4). The trial court clarified that the prosecutor was saying that petitioner was charged with violating the condition of probation requiring him to live and remain at liberty without violating any law and that, because the affidavit filed by the probation officer specifically said sexual battery, the State wanted to amend it to conform to the evidence. (Id., p. 4). The court clarified that the State's position was that the evidence showed other acts that may have been proved in addition to the ones alleged in the affidavit. (Id.). The court allowed the amendment over defense counsel's objection, explaining:
THE COURT: Okay. All right, Mr. Studley [petitioner's counsel], I believe that the law does allow the State to amend to conform to the evidence in these kind of cases. Basically, when I put somebody on probation, there's always Condition 5 that says don't violate the law, and it can include anything that is proven to me by the level of VOP of violating the law, and so over your objection, the record will show your objection, I'm going to allow them to amend it to include all of the acts that were described by the victim in this case.
(Id., p. 5). The court ruled that petitioner violated Condition 5 of his probation, explaining, in relevant part:
(Id., p. 6). The court adjudicated petitioner guilty of violating his probation for the offense of Aggravated Battery (id., p. 6) and sentenced petitioner to fifteen years imprisonment. (Id., p. 10). The Judgment and Sentence was filed on April 7, 2009. (Ex. K).
Petitioner appealed, raising two issues:
(Ex. M). On January 12, 2010, the Florida First District Court of Appeal ("First DCA") per curiam affirmed without written opinion. Quinlin v. State, 25 So.3d 1228 (Fla. 1st DCA 2010) (Table) (copy at Ex. O).
On January 6, 2011, petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. P). The motion was stricken on March 22, 2001, with leave to amend. (Ex. Q). Petitioner filed an amended Rule 3.850 motion on April 13, 2011, raising three claims: (1) counsel was ineffective for failing to object to the introduction of DNA evidence at the VOP hearing; (2) counsel was ineffective for failing to call a particular witness to cast doubt on the credibility of the State's witnesses and (3) counsel was ineffective for failing to impeach the victim's testimony with her inconsistent statements made at the VOP hearing. (Ex. R). The postconviction motion was denied on June 2, 2011, without an evidentiary hearing. (Ex. S). Petitioner's motion for rehearing was denied. (Exs. T, U). The First DCA summarily affirmed on October 5, 2011. Quinlin v. State, 72 So.3d 753 (Fla. 1st DCA 2011) (Table) (copy at Ex. W). The mandate issued November 1, 2011.
Petitioner filed his federal habeas petition in this Court on October 9, 2011. (Doc. 1, p. 1). The petition presents two grounds for relief: (1) "Fundamental Error. The VOP Affidavit fails to provide information under oath of someone with personal knowledge of the alleged offense(s), in violation of Due Process guaranteed by Florida Constitution ART. I §§ 9, 12, 15, 16, and USA Constitution 4th, 6th and 14th Amendments."; and (2) "Fundament Error. The court errored [sic] by allowing the state to orally and substantively amend the VOP Affidavit after the close of evidence, in violation of the 14th Amendment right of Due Process of Law." (Doc. 1, pp. 4-6).
Respondent asserts that petitioner is not entitled to federal habeas relief, because Ground One is procedurally defaulted and presents a purely state law issue, and Ground Two is without merit. (Doc. 13).
Federal habeas relief is available to correct only constitutional injury. 28 U.S.C. § 2254(a); Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 861, 178 L. Ed. 2d 732 (2011) ("The habeas statute unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.") (internal quotations and citations omitted); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80, 116 L. Ed. 2d 385 (1991) (holding that errors that do not infringe upon a defendant's constitutional rights provide no basis for federal habeas corpus relief; "[I]t is not the province of a federal habeas court to reexamine state-court determination on state-law questions."); Barclay v. Florida, 463 U.S. 939, 958-59, 103 S.Ct. 3418, 3429, 77 L. Ed. 2d 1134 (1983) ("Mere errors of state law are not the concern of this court . . . unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.") (citations omitted); Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir. 1991) ("Questions of state law [and procedure] rarely raise issues of federal constitutional significance, because `[a] state's interpretation of its own laws provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.'") (quoting Carrizales v. Wainwright, 699 F.2d 1053 (11
Federal courts may issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. Section 2254(d) provides, in relevant part:
28 U.S.C. § 2254(d) (2011).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000).
Id., 529 U.S. at 412-13 (O'Connor, J., concurring).
Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559U.S. 43, 130 S.Ct. 1171, 1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec'y for Dep't of Corr., 608 F.3d 1313, 1315 (11th Cir. 2010).
After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L. Ed. 2d 263 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168 L. Ed. 2d 662 (2007).
If the state court decision is not contrary to clearly established federal law, the federal habeas court next determines whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4, 122 S.Ct. 1843, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law). An objectively unreasonable application of federal law occurs when the state court "identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case" or "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). A state court, however, may "decline to apply a specific legal rule that has not been squarely established by [the Supreme Court]" without running afoul of the "unreasonable application" clause. Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L. Ed. 2d 251 (2009).
When faced with a state appellate court's summary affirmance of a trial court's decision, the "unreasonable application" standard focuses on the state court's ultimate conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011) (citing Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L. Ed. 2d 624 (2011)). The federal court must determine what arguments or theories supported or could have supported the state court's decision, and then ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior Supreme Court decision. See Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that the federal district court may rely on grounds other than those articulated by the state court in determining that habeas relief was not warranted, so long as the district court did not err in concluding that the state court's rejection of the petitioner's claims was neither an unreasonable application of a Supreme Court holding nor an unreasonable determination of the facts). In sum, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87.
Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). As with the "unreasonable application" clause, the federal court applies an objective test. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state court decision based on a factual determination "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding."). The "unreasonable determination of the facts" standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill, 633 F.3d at 1292.
When performing review under § 2254(d), the federal court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court's factual finding and, when guided by AEDPA, "conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence"). Neither the Supreme Court nor the Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the context of fact-based challenges to state court adjudications. Cave v. Sec'y for Dep't of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate court's summary affirmance, where it found that the validity of the state court decision was not premised on the trial court's unreasonable fact finding, and that the petitioner failed to demonstrate "by clear and convincing evidence that the record reflect[ed] an insufficient factual basis for affirming the state court's decision." Gill, 633 F.3d at 1292.
Only if the federal habeas court finds that the petitioner satisfied AEDPA and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. 930, 954, 127 S.Ct. 2842. Even then, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a). "If this standard is difficult to meet, that is because it was meant to be." Richter, 131 S. Ct. at 786.
Petitioner asserts that the revocation of his probation violates due process, because the State "proceed[ed] against him upon invalid VOP affidavit(s)." (Doc. 1, p. 5). Petitioner alleges that the affidavits were invalid because they were based on hearsay and not the affiant's personal knowledge, and they failed to comply with sections 12, 15 and 16 of the Florida Constitution. Petitioner asserts that section 12 of the Florida Constitution provides that "no warrant shall be issued except upon probable cause, supported by affidavit"; that section 15 of the Florida Constitution provides that "no person shall be tried for [ ] a felony without [ ] an information under oath filed by the prosecuting officer"; and that section 16 of the Florida Constitution provides the right to be "informed of the nature and cause of the accusation." (Doc. 1, p. 5) (brackets in original). Petitioner asserts that he exhausted this claim by raising it in his motion for rehearing in his Rule 3.850 proceeding. (Id.).
Respondent asserts a procedural default defense, arguing that petitioner's raising his claim for the first time in his motion for rehearing does not constitute proper exhaustion, because Florida law provides that a defendant may not obtain a merits review of a claim raised for the first time in a motion for rehearing. Respondent also asserts that petitioner's claim presents a purely state law issue and provides no basis for federal habeas relief. (Doc. 13, pp. 8-11).
Petitioner replies that his procedural default is excused, because he was not represented by counsel in his Rule 3.850 proceeding. (Doc. 17, p. 2 (relying on Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309, 182 L. Ed. 2d 272 (2012)).
The Court need not reach the procedural default issue, because petitioner's factual allegations (taken as true) do not plausibly suggest that the revocation of his probation violated due process. The Due Process Clause undoubtedly imposes some restrictions on the power of states to revoke summarily a probationer's conditional liberty. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed. 2d 484 (1972). In Gagnon and Morrissey, the Supreme Court confronted the questions of what procedural safeguards the Constitution requires for, respectively, probation and parole revocation proceedings. The Court set forth the following "minimum requirements of due process":
"(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole."
Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761 (quoting Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604) (parentheticals inserted by Gagnon Court).
Petitioner does not assert in Ground One that he was denied fair notice of the claimed violations of probation and the basic facts supporting them. The fact that the VOP affidavits incorporated an Affidavit-Complaint that contained hearsay (the statements of the victim as related by Captain Bryant) does not suggest that petitioner failed to receive fair notice of the claimed violations. To the extent petitioner claims the VOP affidavits failed to comply with state law requirements pertaining to warrants and criminal charging documents, his claim presents a purely state law issue and does not provide a basis to grant federal habeas relief. See 28 U.S.C. § 2254(a); Swarthout, supra; Estelle, supra.
Petitioner is not entitled to federal habeas relief on Ground One.
Petitioner asserts that the State's amendment of the VOP affidavit to conform to the evidence violated his due process right "to be noticed of the specific charges on which he is to defend. . . ." (Doc. 1, p. 6). Petitioner states that he exhausted this claim by raising it in his motion for rehearing in his Rule 3.850 proceeding.
Respondent asserts, and the record establishes, that petitioner presented this claim in his direct appeal. (Ex. M). The First DCA per curiam affirmed the revocation of petitioner's probation without written opinion. (Ex. O).
Respondent asserts petitioner is not entitled to federal habeas relief, because the First DCA adjudicated petitioner's claim on the merits, and the state court's decision was neither contrary to clearly established federal law, nor based on an unreasonable application of clearly established federal law. (Doc. 13, pp. 12-21).
Petitioner asserts in his reply that the state court's decision does not constitute an adjudication on the merits, because the district court in Shelton v. Sec'y, Dep't of Corr., 802 F.Supp.2d 1289 (M.D. Fla. 2011), held that a state appellate court's per curiam affirmance is not an adjudication on the merits. (Doc. 17, p. 1). Petitioner's argument is without merit. The Eleventh Circuit reversed the district court's ruling in Shelton, supra, and held that a Florida appellate court's per curiam affirmance without opinion was "an `adjudication on the merits' entitled to AEDPA deference." Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348, 1353 (11th Cir. 2012). The United States Supreme Court has also rejected petitioner's argument. See Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1096, 185 L. Ed. 2d 105 (2013) ("When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits. . . ."); Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 784, 178 L. Ed. 2d 624 (2011) ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").
Petitioner has not attempted to rebut the presumption that the First DCA's per curiam affirmance without opinion was an adjudication on the merits. The First DCA's decision is entitled to AEDPA deference.
The clearly established federal law with regard to the minimum requirements of due process in the context of probation revocation proceedings is set forth above. Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761. The First DCA's rejection of petitioner's claims on direct appeal was not contrary to, or an unreasonable application of, Gagnon. The original and first amended VOP affidavits put petitioner on fair notice of the basic facts concerning the alleged violation — that petitioner engaged in unlawful sexual activity with R. S. L. on the afternoon of April 22, 2008, by attempting to put his penis in her vagina, and that he sexually molested R. S. L. on two prior occasions, one of which involved his attempt to put his penis in her buttocks. Petitioner was not misled in the preparation of his defense. Petitioner's defense strategy was to insist that he had no inappropriate contact with R. S. L. and that she was lying — a strategy that would not likely have changed if the charging document had been amended before the presentation of evidence. After hearing the evidence presented at the revocation hearing, the trial court found that based on the lower standard of proof required at probation revocation hearings, the State presented enough evidence to show that petitioner violated his probation for the new law violation of sexual battery as alleged in the amended VOP affidavit, as well as lewd and lascivious behavior. Petitioner's revocation hearing was not rendered unfair at all, and certainly not fundamentally unfair, by the oral amendment of the VOP affidavit.
The state court's rejection of petitioner's claim was not contrary to clearly established federal law and did not involve an unreasonable application of clearly established federal law. Petitioner is not entitled to federal habeas relief on Ground Two.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.
The petitioner in this case fails to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning of this term) (citation omitted). Accordingly, the court should deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is ORDERED:
The Clerk shall change the docket to reflect that Michael D. Crews has been substituted as the respondent in this cause.
And it is respectfully RECOMMENDED:
1. That the petition for writ of habeas corpus (doc. 1), challenging the revocation of petitioner's probation in State of Florida v. Jonathan Edgar Quinlin in the Circuit Court for Jackson County, Florida, Case No. 06-541 be DENIED, and the Clerk be directed to close the file.
2. That a certificate of appealability be DENIED.
